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Clean Power Plan – Legal Landscape Update – April 2016

Final Briefs Filed In D.C. Circuit Litigation

Eighteen prominent groups filed friend-of-the-court briefs in support of the Clean Power Plan this month, including several electric utilities; major tech companies such as Amazon, Apple, Google, and Microsoft; more than 200 current and former members of the House and Senate; and multiple former EPA administrators and cabinet members. The Institute for Policy Integrity also filed a brief (more on this below). Dominion Resources Inc., which owns several coal- and natural-gas-fired power plants, surprised some observers when it filed a brief in support of the plan, arguing that the rule’s focus on gas and renewables is consistent with industry trends. April 15 also marked the deadline for challengers to file their reply briefs. All briefs have now been submitted, and the judges have begun to review the case in advance of the June 2 oral argument.

History and the Clean Power Plan

Richard Revesz recently published an op-ed in U.S. News & World Report, titled, The Clean Power Plan Is Nothing New. Revesz writes: “The coal companies and states challenging the plan have crafted a legal argument that essentially focuses on one core assertion: that the rule is ‘unprecedented.’ But history suggests otherwise. Every major element of the Clean Power Plan that opponents say is unprecedented has in fact been used by the EPA before, under administrations of both parties.” The piece builds upon some of the arguments in the Institute for Policy Integrity’s amicus brief, which analyzed prior EPA rules and relevant court decisions – some dating back to the Reagan administration – revealing that the structure of the Clean Power Plan is consistent with decades of Clean Air Act practice. Revesz, Denise Grab, and Jack Lienke explored these topics in a recent Environmental Law Reporter article. Revesz also recently discussed the legal issues surrounding the CPP with the New York Times and Al Jazeera America.

Coal Communities and Climate Policies

Coal-producing states have led the charge in the litigation against the Clean Power Plan, and recent news articles have explored some of the stories behind this opposition. A series from E&E News discussed how two Powder River Basin coal towns are adjusting to declining production, while a recent Huffington Post piece examined the forces behind coal’s decline, concluding that Obama administration regulations have played only a small role. Jack Lienke and Richard Revesz discussed federal compensation for struggling coal communities at a recent speaking engagement, and their remarks were covered by SNL Energy. Revesz attributed the lack of progress on coal community compensation programs to a “cynical” Republican political effort to halt the Clean Power Plan. “The reason they don’t do it is because they want to hold these communities hostage. They think that by holding these communities hostage, they can defeat the Clean Power Plan and deprive the country of enormous health, environmental and climate change benefits.” In related news, Minnesota lawmakers critical of the Clean Power Plan recently scrapped an aid package for coal communities in favor of a policy that will freeze compliance planning related to the rule.